Where the victim is aged 10 years or less, the maximum penalty is 7-years imprisonment under section 66DC Crimes Act 1900 (NSW).

Where the offence of a sexual act is committed in circumstances of aggravation, the penalties rise to a maximum of 3-years prison and/or a fine of up to $5,500. However, if the victim of an aggravated sexual act is between the age of 10-16 years old, the maximum penalty is 5-years prison. If the victim here is under 10-years of age, the maximum penalty is 7-years prison.

‘Circumstances of aggravation’ includes where the offence is committed in company of another person (other than the victim), where the victim was at the time under the authority of the offender, or where the victim had a serious physical disability of cognitive impairment.

A criminal record for a sexual act offence can have significant consequences.

What is a ‘Sexual Act’?

A sexual act is behaviour that a reasonable person would consider to be sexual.

When a court assesses whether the alleged behaviour is something a reasonable person would assess as sexual, the following factors will be considered, if relevant:

The circumstances in which the act was done.

Whether there is any aspect of the act that would cause it to be seen as sexual.

Whether it was done for a sexual gratification or arousal.

If any body parts were used, which parts. For example, if it involves the breasts or genitals, then it would likely be considered sexual.

In summary, for you to be found guilty of committing a sexual act in court, the police are required to first prove each of the following beyond reasonable doubt:

You intended to do the act either towards or with the victim; and

The victim didn’t consent; and

You were aware that the victim didn’t consent; and

A reasonable person would consider the act as sexual.

A person who is faced with a charge of sexual act will have a defence to his/her case which will result in the charge being dismissed if any one of the following defences apply:

If the police fail to prove any one of the above 4 elements of the crime; or

The act was for a genuine medical or hygienic purpose; or

Self-defence; or

Your act was involuntary; or

Your act was incidental as in the course of ordinary exigencies of everyday life; or

The act was committed under a necessity or duress; or

You honestly and reasonably believed that the alleged victim was consenting at the time of the act.

It is worth noting that where a person is guilty of committing a sexual act in NSW, the court is limited in the availability of the types of penalties it can impose on a sentence. For example, the sentencing options of an Intensive Correction Order (ICO) will not available to such offenders if the victim at the time of the offence was under 16-years of age.

There are various kinds of sexual offences in NSW, each of which are taken very seriously by police and the courts under the law. It’s critical to obtain early advice and guidance if every facing any of these charges.